Thursday, October 27, 2005

Why did Harriett Miers withdraw herself from further consideration for the Supreme Court on October 27?

Not simply because conservatives were attacking her. Democrats are accusing the President of caving in to the ultra-right wing in pulling her nomination. In blaming the ultra-right wing, Democrats are attacking their favorite boogeymen. Strategically, they are laying the groundwork to attack the next nominee as "the tool of right wing extremists," fearing correctly that the President will nominate a genuine conservative legal heavy weight. This will set up the battle in the Senate that has been feared since January with the talk about the "nuclear option" (remember that phrase?).

The background is that on Capitol Hill, as Miers met with Senators making "courtesy calls" (which are not simply about tea and pleasantries) she was not making a positive impression trying to present herself as knowledgeable about the intricacies of constitutional law. The questionnaire she submitted to the Judiciary Committee was so substandard, the Committee asked her to supplement it. Majority Leader Frist assessed the situation and called the White House on Wednesday to say that Miers probably would not be confirmed.

Miers remained an unknown quantity to the end. She responded to a questionnaire when running for Dallas City Council that she would work to ban abortion. Four years later she gave a speech about the importance to women of "self-determination." She was reputed to be a hard worker and competent attorney. But her writing, such as her monthly columns as President of the Texas Bar, was atrocious, as David Brooks of The New York Times pointed out.

The President ends up looking bad. He named a close crony to the high court. She turns out to be substandard. His base deserts him. He appears to fail to understand the role of the Supreme Court. Whatever credit he gets for nominating the highly-qualified John Roberts evaporates.

The Miers nomination reveals a deep hypocrisy about the Supreme Court at the White House. Miers was peddled to James Dobson (Focus on the Family) and other anti-abortion activists as a sure "vote" to reverse Roe v. Wade.

The principled conservative objection to social policy decisions of the Court such as Roe v. Wade is that they are acts of legislation, not reasoned interpretations of the Constitution. (This is aside from the political fact that conservatives disagree with the policy.)

For the president to simply see Miers as a sure "vote" to reverse Roe is to promote her as a legislator, an argument fundamentally at odds with the conservative criticism of Supreme Court jurisprudence since the days of Earl Warren. Miers' record revealed that she had no background to provide reasoned interpretations of the Constitution to support her decision making. Genuine conservatives, aside from their fears that she might not be as dependable as they might like, saw a prospective justice simply unable to hold her own in the intellectual combat of Supreme Court deliberation.

Friday, October 14, 2005

Six weeks after Hurricane Katrina's flooding and evacuations demolished thejustice system in New Orleans, some constitutional rights are being appliedagain. Some of the prisoners are getting hearings, reports The New YorkTimes, on whether they are eligible for bail, a right guaranteed by theEighth Amendment. But another right, the Sixth Amendment right to a speedy trial, is being suspended.

While it is understandable given the state of chaos, it is worth noting thefailure of the administrators of the system of justice to prepare for thecontinuation of the justice system after a hurricane. It is obvious nowthat emergency planners need to plan for the continuation of the justicesystem, just as they plan for resumption of power supply, potable water,food, transportation, housing, hospitals and schools.

When the nature of an evacuation changes from flight for temporary refugefrom a storm to permanent migration, the nature of a jury trial changes.What does the jury pool look like in the new New Orleans? How does one geta jury of one's peers, when one's peers are scattered across the nation?

When a city has no money, and the basis for tax revenues are lost -- noreal estate taxes paid on destroyed properties; no sales taxes fromtourists who aren't present -- the ability to carry out a criminal justicesystem may be lost as well.

Even though the drama of the Katrina tragedy is not heard in the hourlynews round-ups now -- new tragedies, new scandals are the news -- only afew minutes consideration reveals that tribulations of a million peopleonce living along the Gulf coast are achingly tragic, and will continue foryears.